July 28, 2016

Don Dale is the tip of the iceberg

By Russell Marks
Don Dale is the tip of the iceberg
Image: ABC
Mistreatment of vulnerable people in detention is commonplace throughout Australia

The image of a hooded Dylan Voller, bound to a “mechanical restraint” chair inside Darwin’s Don Dale juvenile prison, is as iconic as those that leaked from Abu Ghraib. Adam Giles and Malcolm Turnbull’s responses were swift. There will be a Royal Commission into juvenile detention in the Northern Territory. Federal Cabinet will discuss the terms today.

But Turnbull has already ruled out extending the terms of reference to cover detention in other states. The implication is that what the nation saw on Four Corners on Monday is a Territory problem – and moreover, given Giles’ unequivocal reaction, a problem of rogue elements in the Territory’s Department of Corrections. Those rogue elements extend at least to the Territory’s most recent corrections ministers, Ken Middlebrook (who quit in November) and John Elferink (who was sacked this week), both of whom have publicly defended the use of the mechanical restraint chair and the excessive use of tear gas.

The “rogue elements” explanation is a fantasy. Most members of the Territory’s governing Country Liberal Party – including Giles – voted in favour of legislation that authorised the use of mechanical restraint chairs in May this year. Complaints of serious child abuse have been made about the Territory’s youth justice system for years, but both territory and federal governments have refused to act – except by legislating even tougher and harsher responses to youth crime. The ABC has previously reported on the systematic abuse of Voller and other children, and the Northern Territory Child Commissioner completed a report into the abuses that was published last September.

It’s quite clear that without the images screened by Four Corners on Monday evening, both governments would have continued to sanction cruel, inhumane and degrading treatment of the young men and women caught up in the Territory’s justice system.

There are other components of this “rogue elements” fantasy which need debunking. Other states may not use the kind of mechanical restraints they do in the Northern Territory, but they regularly use solitary confinement. They overcrowd their prisons and youth detention centres. They deny detainees and prisoners medical treatment far too often. They mete out summary punishments – including the withdrawal of “privileges” like blankets and bedding – for very dubious reasons, without real oversight or accountability. And they transfer children to adult prisons, where they are locked away in solitary confinement – sometimes for months at a time.

In 2012, the Victorian Ombudsman reported on a 16-year-old Aboriginal boy who was transferred from one of that state’s youth detention centres to Port Phillip Prison following an attempted escape, during which centre staff had been injured. The child then spent 99 days in the prison’s extreme-security Charlotte Management Unit in solitary confinement, during which time he was allowed out of his cell for only two hours every day. When he was outside his cell, he was handcuffed and shackled. His transfer to Port Phillip was authorised by Victoria’s Department of Human Services and its Youth Parole Board in contravention of its own policies, which did not allow such transfers in cases where young people had serious mental illnesses. There were no images of this abuse, and there was no major revision of the practices of youth justice or corrections in light of the ombudsman’s report. The legislation enabling the transfer of children to adult prisons, which was championed by the governing Australian Labor Party in Victoria, remains on the books, despite the ombudsman’s unambiguous recommendation that it be repealed.

These are not isolated incidents or the result of unsanctioned decisions by rogue elements in Australia’s bureaucracies. They are the direct and predictable outcomes of a culture that has formed in both youth justice and adult corrections – a culture that has been encouraged by governments and an increasingly rabid tabloid media. This is the “tough on crime” culture which imagines offenders as unambiguously bad, and holds that the appropriate response to their behaviour is increasingly severe punishment. It’s a popular response to criminal behaviour, based in understandable outrage on behalf of victims and a complete misunderstanding of the factors that lead most people to commit offences. It just doesn’t have much of a basis in the evidence about what does and doesn’t work to prevent future offending.

Almost all state, territory and federal governments for the past generation have supported increasingly “tough” measures to deal with criminal behaviour. Longer prison sentences. Harsher prison conditions. Mandatory imprisonment for certain crimes. Revocation of parole. As a result, the incarcerated population of Australian states and territories has skyrocketed since the mid-1970s. The increase has been exponential, so most of it has happened in the last decade. All other things being equal, prison (and youth detention) makes it slightly more likely that a person will re-offend upon their release. It is extraordinarily expensive to keep a person in custody – about $100,000 a year for adults, and up to $300,000 for children – especially when compared with other ways of dealing with criminal behaviour that have much more success in actually stopping it.

Adam Giles himself has been at the forefront of the Territory’s “tough” response to criminal behaviour. In 2010, he famously told parliament in Darwin that if he were corrections minister – which he now is – “I would build a big concrete hole and put all the bad criminals in there.” He went on: “What I do not understand is how we are soft, flaccid and incapable of punishing prisoners in our corrections system.”

The media has also played its part. In Queensland, Campbell Newman swept to power in 2012 helped by a campaign of distortion by that state’s News Ltd tabloid, the Courier-Mail, which had complained, among other things, that “not enough” girls between the ages of 10 and 14 were being sentenced to youth detention. Soon after becoming Attorney General, Jarrod Bleijie announced that he would “get tough” on youth crime by removing diversionary options, publicly “naming and shaming” kids who had committed even trivial offences, and by sending kids to “boot camps”. The Courier-Mail helped out with its sensationalist reporting of a “youth crime wave”, by deliberately misquoting the president of the Children’s Court, whose 2012–13 report showed an increased compliance with court orders among young people. The Herald Sun in Melbourne has run a similar campaign against a so-called youth crime wave this year, despite official crime statistics from Victoria Police showing that crime committed by teenagers has remained relatively steady.

When modern prisons were invented in the nineteenth century, we knew very little about what caused a person to commit crimes. We assumed that punishing them would deter them from acting in the same way again, and would also deter others. But now we know that an overwhelming majority of especially violent behaviour is trauma-informed. Queensland’s Crime and Misconduct Commission inquired into the backgrounds of non-custodial offenders in 2007, and found that – overwhelmingly – offenders had experienced, as children, very high rates of family violence, parental drug and alcohol abuse, and abuse within the state’s child protection system. The most appropriate – and effective – way of dealing with trauma-informed behaviour is to address the trauma. The very worst thing we can do is to heap on additional trauma – but that’s exactly what’s happening to most people in prisons and detention centres, which are highly authoritarian environments where violence (both from other detainees and from authorities) is a constant threat. It’s certainly what has happened to Dylan Voller, a young man who has mostly been locked up since he was about 11.

Prison officers are generally not equipped to respond effectively to trauma-informed behaviour. They don’t see the violence or insolence or “disrespect” as symptomatic of a deeper issue that needs to be addressed over the long term with specialist behavioural interventions. They see violence and they respond with violence. The more inadequate the officers’ training in trauma-informed treatment is, the more true this is.

Because punishing criminals is the basis of our criminal justice systems, it’s not surprising that bad behaviour is punished (rather than prevented) by officers inside prisons and youth detention centres. There is extraordinarily little independent oversight of what goes on inside these places. As a criminal defence lawyer, I would regularly urge magistrates to note specific concerns about particular prisoners – diagnoses of mental illnesses, prescribed treatment plans, intellectual disabilities – on their imprisonment orders. And they generally would, to very little effect. One client, for instance, had recently stabilised on a particular dosage of anti-psychotic medication before he was sentenced to six months’ imprisonment. The sentencing magistrate noted the importance of continuing that medication, but within days of entering the prison system my client was switched to a different dosage, suffered a psychotic episode and was sent to solitary.

If Australia and its states and territories were truly committed to ending the abuse of prisoners and youth detainees, our rates of incarceration would be going down, not up. But those rates are skyrocketing. If we really wanted to end this kind of abuse, we would be very aware of the links between child protection reports and involvement in the justice system. But the Victorian Department of Health and Human Services, for instance, doesn’t even keep data that tracks the numbers of children who spend time in out-of-home care and who are subsequently charged with a criminal offence – even though the department is responsible for both child protection and youth justice.

Nelson Mandela, who spent 26 years in South African prisons under Apartheid, wrote “No one truly knows a nation until one has been inside its jails.” Australia’s prisons are not those of a modern, democratic nation. Our detention centres – for young people and for unlawful immigrants – increasingly resemble prisons. (Darwin’s Don Dale, despite being a juvenile justice centre, is officially known as a “maximum security prison” and is administered not by a human services department, as is the case in other states, but by the Territory’s department of corrections.) Australia’s prisons are full of people with serious mental illnesses and intellectual disabilities. Corrections Victoria reported that 42% of that state’s prisoners in 2011 had an acquired brain injury. Aboriginal and Torres Strait Islander people make up a quarter of Australia’s prison population. The rate of Aboriginal people dying in custody in Australia has increased by 50% since the Royal Commission into Aboriginal Deaths in Custody reported in 1991. This is the consequence of a “tough on crime” response to criminal behaviour: it heaps violence upon violence for people who already face major structural disadvantages.

The cruel and degrading treatment to which refugees and asylum seekers have been subject in Australia’s immigration detention centres – which look and feel like prisons, and which are staffed by employees of the same companies that service prisons (Wilson, Transfield, Serco and Australasian Correctional Management) – has made Australia an international human rights pariah. Yet thousands of Australians express support for our “unapologetically harsh” treatment of refugees, and work for government departments that facilitate it, and millions more vote for political parties that enact it.

The awful truth is that we now have very few compunctions about torturing extremely vulnerable people. It’s a tempting fantasy to believe that the implications of the Don Dale revelations can be limited to the Northern Territory, but it’s a fantasy all the same. 

Russell Marks

Russell Marks is a lawyer and an adjunct research fellow at La Trobe University. He is the author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 

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